When Deposition May Be Taken & Timing

1. Early Phase Limitations: Initially, plaintiffs face a restriction on conducting depositions. They can’t serve deposition notices until 20 days post the summons service or any defendant’s appearance. In contrast, defendants can initiate depositions immediately after being served or appearing. This approach aims to balance the discovery process, preventing plaintiffs from overwhelming defendants prematurely.
2. Best Practices for Depositions: Depositions are most effective when done early in the lawsuit to capture fresh memories. It’s advisable to conduct other discovery methods like interrogatories or document requests beforehand to prepare for depositions. Quick action in taking depositions can limit the opposing party’s ability to adapt their testimony to your case strategy. However, avoid rushing into depositions unprepared, as the law restricts deposing the same person multiple times without court approval (Ca Civ Pro § 2025(t)).
3. Strategic Depositions by Defense: Some defense attorneys prefer to depose the plaintiff before responding to the complaint. This tactic can lead to admissions that hinder later complaint amendments. Since defendants haven’t disclosed their affirmative defenses at this stage, plaintiffs might be less prepared for certain lines of questioning.
4. “Hold” Period for Plaintiff’s Depositions: The 20-day “hold” for plaintiff’s depositions ensures a fair start for both parties. It means plaintiffs can’t take depositions until at least 30 days after a defendant’s involvement, considering the 10-day notice requirement for depositions.
5. Scope and Purpose of the Rule: The regulation applies to all deposition-related discovery, including business records subpoenas. Its intent is to prevent premature discovery burdens on defendants, allowing them time to acquire counsel and begin their investigation.
6. Defendant’s Initial Priority: As the responding party, defendants get an initial advantage in setting depositions. If they act promptly, they can schedule depositions before the plaintiff’s “hold” period ends. The actual scheduling date, not the notice date, determines deposition priority.
7. Ambiguity in the Rule’s Application: There’s uncertainty about whether the “hold” period applies to later-served defendants if one has already been served for over 20 days. This could potentially disrupt the intended initial deposition priority for newly involved defendants.
8. Court’s Discretion for Early Depositions: The court can permit plaintiffs to serve deposition notices before the 20-day period ends for valid reasons, such as identifying responsible parties before the statute of limitations expires.
9. Discovery Completion and Motion Deadlines:
   1. Discovery must be finalized 30 days before the initially set trial date.
   2. Discovery motions need to be heard at least 15 days before the trial date (Ca Civ Pro § 2024(a)).
   3. If these deadlines fall on a weekend or holiday, they extend to the next court day (Ca Civ Pro § 2024(a),(g)).

Advice for Litigators: Avoid scheduling discovery close to cut-off dates to ensure time for motions to compel if needed. Last interrogatories or requests for admission should be served 90 days before trial, and last depositions at least 60 days before.

1. No Shorter Deadlines Under Local Rules:
   1. Local fast track rules cannot set earlier discovery deadlines than those in the Discovery Act (Ca Govt § 68616(f)).
   2. However, courts may ask for earlier discovery cut-off agreements at case management conferences.
2. Special Rules for Complex Cases: In complex cases, courts can set unique discovery schedules and time limits (CA Rules of Court Rule Appendix Div. I § 19(d),(e)).
3. Exceptions to Standard Cut-off Dates:
   1. Unlawful detainer actions and eminent domain proceedings have specific discovery timelines (Ca Civ Pro §§ 2024(c)(1), 2025(f), 2024(c)(2)).
   2. Judicial arbitration cases follow court rules for discovery completion, typically 15 days before arbitration (Ca Civ Pro § 2024(b); Ca Rules of Court Rule 1612).
   3. Post-arbitration discovery is limited unless otherwise ordered by the court (Ca Civ Pro §§ 2024(b), 1141.24).
4. Expert Witness Discovery Deadlines: Discovery related to expert witnesses can continue until 15 days before the trial, with motions on such discovery heard up to 10 days before trial (Ca Civ Pro § 2024(d)).
5. When Is Discovery Considered “Completed”: A deposition is “completed” on the day it begins, while other discovery methods are completed on the due date of the response (Ca Civ Pro § 2024(a)).
6. Effect of Trial Continuance and Retrials:
   1. Continuance of a trial does not reopen discovery.
   2. Discovery timelines restart for mistrials, new trials, or judgment reversals, measured from the retrial date (Ca Civ Pro § 2024(a)).
7. Stipulations for Extended Discovery: Parties can agree to extend discovery deadlines or reopen discovery after a trial date postponement. Such agreements must be in writing and consented to by all parties (Ca Civ Pro § 2024(f)).
8. Court’s Discretion for Late Discovery:
   1. Courts may permit late discovery or hearing of discovery motions upon motion by any party (Ca Civ Pro § 2024(e)).
   2. Factors considered include necessity, diligence, impact on trial schedule, and elapsed time since previous trial dates.